Harmonizing Freedom of Speech and Free Exercise of Religion

[...]The close relationship between the free exercise of religion and the freedom of speech points to the sensible assumption that they should receive similar interpretation when dealing with parallel types of problems, or at least that differences in interpretation should be carefully justified. With this premise, this Article compares freedom of speech and free exercise jurisprudence in various parallel applications, with the suggestion of harmonizing them more closely. While other commentators have compared freedom of speech and free exercise case law with a narrower focus (most commonly, focusing on the incidental burdens issue presented in [Employment Division v. Smith]), I consider here multiple ways in which free exercise and free speech standards of protection differ, or where some have argued that they differ. These include the treatment of incidental burdens, underinclusive regulations, regulations that allow individualized exemptions, freedom of association, regulations that compel behavior, and conditions on public employment.

In addition, I consider the overlapping protection these freedoms provide for religious expression, and what the Court’s apparent preference for using speech jurisprudence here signifies. This abstract has been taken from the author's introduction.